Citation Nr: 0810998
Decision Date: 04/03/08 Archive Date: 04/14/08
DOCKET NO. 05-26 592 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to service connection for bilateral plantar
fasciitis.
2. Entitlement to service connection for hypertension.
3. Entitlement to service connection for inguinal hernia.
4. Entitlement to service connection for sinusitis.
5. Entitlement to service connection for right olecranon
bursitis.
6. Entitlement to service connection for chronic low back
pain
7. Entitlement to an initial rating in excess of 10 percent
for left knee chrondomalacia.
8. Entitlement to an initial rating in excess of 10 percent
for right knee chrondomalacia.
9. Entitlement to an initial compensable rating for
degenerative joint disease, fifth finger of the left hand, to
include healed fracture of the left wrist.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The veteran and his wife
ATTORNEY FOR THE BOARD
K. M. Schaefer, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1979 to July 1982
and periods of active duty for training and inactive duty
training with the South Carolina National Guard from May 1994
to May 2004.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions issued in November
2004 and April 2005 by the Department of Veterans Affairs
(VA) Regional Office (RO) in Columbia, South Carolina.
The veteran testified at a personal hearing before the
undersigned Acting Veteran's Law Judge, sitting at the RO in
August 2007; a transcript of the hearing is associated with
the claims file. At this hearing, the veteran submitted
additional evidence consisting of April 2007 and August 2007
statements by his employer, May 2007 to August 2007 VA
treatment records, a September 2006 opinion by Dr. A. D. V.,
statements from Dr. E. B. and M. G., and service medical
records. See 38 C.F.R. § 20.1304 (2007). The veteran waived
agency of original jurisdiction (AOJ) consideration of such
evidence. Id. Therefore, the Board may properly consider
such evidence in rendering its decision.
The Board also notes, subsequent to certification of the
appeal to the Board, the veteran submitted VA treatment
records dated in May 2007, but did not waive AOJ
consideration of this evidence. Id. However, as these
records are duplicative of information already contained in
the claims file prior to issuance of the last supplemental
statement of the case (SOC) in June 2007, the Board finds
that a remand for AOJ consideration of these records is
unnecessary.
The issues of entitlement to service connection for bilateral
plantar fasciitis, inguinal hernia, right olecranon bursitis,
and a back disorder and an initial compensable rating for
degenerative joint disease of the right fifth metatarsal are
addressed in the REMAND portion of the decision below and are
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDINGS OF FACT
1. Hypertension was not present in service, manifested within
one year of the veteran's discharge from service, or shown to
be causally or etiologically related to any disease, injury,
or incident in service.
2. The medical evidence of record does not demonstrate that
the veteran has currently diagnosed sinusitis.
3. Left knee chrondomalacia is manifested by subjective
complaints of pain, worse with prolonged sitting, stair
climbing, and walking; some popping and locking, and
occasional giving way when climbing stairs; and objective
evidence of mild varus deformity that was correctable; full
range of motion of the knees from full extension to 120
degrees flexion; tenderness about the patella with normal
tracking; negative valgus-varus testing; normal anterior and
posterior drawer tests; positive patellar grind test; and no
effusion.
5. Right knee chrondomalacia is manifested by subjective
complaints of pain, worse with prolonged sitting, stair
climbing, and walking; some popping and locking, and
occasional giving way when climbing stairs; and objective
evidence of mild varus deformity that was correctable; full
range of motion of the knees from full extension to 120
degrees flexion; tenderness about the patella with normal
tracking; negative valgus-varus testing; normal anterior and
posterior drawer tests; positive patellar grind test; and no
effusion.
CONCLUSIONS OF LAW
1. Hypertension was not incurred in or aggravated by the
veteran's active duty military service, nor may it be
presumed to have been incurred in or aggravated by such
service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002);
38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).
2. Sinusitis was not incurred in or aggravated by the
veteran's active duty military service. 38 U.S.C.A. §§ 1110,
1131 (West 2002); 38 C.F.R. § 3.303 (2007).
3. The criteria for a rating in excess of 10 percent for left
knee chrondomalacia have not been met. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260,
5261 (2007).
4. The criteria for a rating in excess of 10 percent for
left knee chrondomalacia have not been met. 38 U.S.C.A. §
1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5257,
5260, 5261 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VA's Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000
(codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West
2002 & Supp. 2006)), eliminated the concept of a well-
grounded claim and redefined VA's obligations with respect to
its duties to notify and assist a claimant. In August 2001,
VA issued regulations to implement the VCAA. 66 Fed. Reg.
45,620 (August 29, 2001) (codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2007)).
A VCAA notice, as required by 38 U.S.C. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120
(2004). With regard to the veteran's claims for service
connection for hypertension and sinusitis, a VCAA letter was
sent in December 2004, prior to the initial unfavorable
decision issued in April 2005. VCAA notice with regard to
the veteran's increased rating claims is discussed below.
Under Pelegrini, for a VCAA notice to be consistent with 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the notice must:
(1) inform a claimant about the information and evidence not
of record that is necessary to substantiate the claims; (2)
inform the claimant about the information and evidence that
VA will seek to provide; (3) inform the claimant about the
information and evidence that the claimant is expected to
provide; and (4) request or tell the claimant to provide any
evidence in the claimant's possession that pertains to the
claims. Pelegrini, 18 Vet. App. at 120-121.
In reviewing the veteran's claims of entitlement to service
connection, the Board observes that the VCAA notice issued in
December 2004 informed the veteran of the type of evidence
necessary to establish service connection, how VA would
assist him in developing his claims and his and VA's
obligations in providing such evidence for consideration; and
requested that he submit any evidence in his possession
relevant to his claims to VA. Thus, as the veteran received
a fully VCAA compliant letter for both service connection
claims prior to the first adjudication, the Board finds that
to decide the appeal would not be prejudicial to him.
Also pertinent to VA notice requirements is the United States
Court of Appeals for Veterans Claims (Court) decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). Dingess/Hartman held that the VCAA notice
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a service connection
claim. Those five elements include: 1) veteran status; 2)
existence of a disability; 3) a connection between the
veteran's service and the disability; 4) degree of
disability; and 5) effective date of the disability. The
Court held that upon receipt of an application for a service
connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Additionally,
this notice must notify the veteran that a disability rating
and an effective date for the award of benefits will be
assigned if service connection is awarded. Id.
In the present case, the veteran was advised of the evidence
necessary to establish entitlement to disability ratings and
effective dates in an attachment to the April 2006
supplemental statement of the case. A supplemental statement
of the case was subsequently provided to the veteran in July
2006. The United States Court of Appeals for the Federal
Circuit (Federal Circuit) recently held that a statement of
the case (SOC) or supplemental statement of the case (SSOC)
can constitute a "readjudication decision" that complies
with all applicable due process and notification requirements
if adequate VCAA notice is provided prior to the SOC or SSOC.
See Mayfield v. Nicholson, No. 2007-7130, 2007 WL 2694606
(Fed. Cir. Sept 17, 2007) [hereinafter Mayfield III]. As a
matter of law, the provision of adequate VCAA notice prior to
a readjudication "cures" any timing problem associated with
inadequate notice or the lack of notice prior to an initial
adjudication. See Mayfield III, (citing Mayfield v.
Nicholson, 444 F.3d at 1328, 1333-34). Moreover, as the
Board concludes herein that the preponderance of the evidence
is against the veteran's service connection claims, any
questions as to the appropriate disability ratings or
effective dates to be assigned are rendered moot.
As to VA's duty to notify and the veteran's claim for right
and left knee disabilities, the board notes that the appeal
arises from the veteran's disagreement with the initial
evaluation following the grant of service connection for
those disabilities. The Federal Circuit and Court have held
that once service connection is granted the claim is
substantiated, additional notice is not required, and any
defect in the notice is not prejudicial. Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v.
Nicholson, 21 Vet. App. 112 (2007). Moreover, since VA's
notice criteria was satisfied because the RO granted the
veteran's claim for service connection, the Board also finds
that VA does not run afoul of the Court's recent holding in
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).
All that VCAA requires is that the duty to notify is
satisfied and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished all due process concerns have
been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error). As indicated above, all
content requirements of a VCAA notice have been fully
satisfied in this case. The Board also finds that any
defects with regard to the timing of the VCAA notice are
harmless because of the thorough and informative notices
provided throughout the adjudication process. In addition,
the veteran has had a meaningful opportunity to participate
effectively in the processing of the claim with an
adjudication of the claim by the AOJ subsequent to receipt of
the required notice. Thus, there has been no prejudice to
the veteran, and any defect in the timing of the notice has
not affected the fairness of the adjudication. See Overton
v. Nicholson, 20 Vet. App. 427 (2006); Mayfield, 19 Vet.
App., supra, rev'd on other grounds, 444 F.3d, supra
(specifically declining to address harmless error doctrine),
on remand, 20 Vet. App. 537 (2006) (discussing Board's
ability to consider "harmless error"); see also
Dingess/Hartman, supra; cf. Locklear v. Nicholson, 20 Vet.
App. 410, 415-16 (2006) (duty to notify does not extend in
perpetuity or impose duty on VA to provide notice on receipt
of every piece of evidence or information). Consequently,
the Board finds that delaying appellate review by providing
additional VCAA letters to the veteran would be of no
benefit.
VA has also fulfilled its duty to assist the veteran in
making reasonable efforts to identify and obtain relevant
records in support of the veteran's claims and providing him
with a VA examination. The veteran's VA treatment records,
private treatment records, and VA examination reports dated
in June 2004, October 2004, December 2004, January 2005, and
November 2005 were reviewed by both the AOJ and the Board in
connection with adjudication of his claims. The veteran has
identified no additional, relevant records that VA needs to
obtain for an equitable disposition of his claims.
Based on these facts, the Board concludes that the medical
evidence of record is sufficient to adjudicate the veteran's
claims without further development. Thus, the Board finds
that additional efforts to assist or notify the veteran in
accordance with VCAA would serve no useful purpose. See
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements of the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran are to
be avoided). VA has satisfied its duty to inform and assist
the veteran at every stage in this case. Therefore, he will
not be prejudiced by the Board proceeding to the merits of
the claims.
II. Service Connection Claims
Service connection may be granted for disability arising from
disease or injury incurred in or aggravated by service. 38
U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a).
Connecting the disability to service may be accomplished
through statutory presumption or through affirmative evidence
that shows inception or aggravation during service, or that
otherwise indicates a direct relationship between service and
the current disability. 38 C.F.R. §§ 3.303(a), (d).
The statutory presumptions and VA regulations implementing
them are intended to allow service connection for certain
diseases when the evidence might otherwise not indicate
service connection is warranted. See 38 C.F.R. § 3.303(d).
Where a veteran served for at least 90 days during a period
of war or after December 31, 1946, and manifests certain
chronic diseases, including hypertension, to a degree of 10
percent within one year from the date of termination of such
service, such disease shall be presumed to have been incurred
or aggravated in service, even though there is no evidence of
such disease during the period of service. 38 U.S.C.A. §§
1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
However, presumptive periods are not intended to limit
service connection to diseases so diagnosed when the evidence
warrants direct service connection. 38 C.F.R. § 3.303(d).
Direct service connection may be granted for disease or
disability diagnosed in service; or, if diagnosed after
service, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. Id.
A finding of direct service connection requires medical
evidence of a current disability; medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between the claimed in-service disease or injury and
the present disease or injury. 38 U.S.C.A. § 1112; 38
C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498,
506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)].
Alternatively, service connection may be established under 38
C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a
chronic disease in service or during an applicable
presumption period under 38 C.F.R. § 3.307 and (ii) present
manifestations of the same chronic disease, or (b) when a
chronic disease is not present during service, evidence of
continuity of symptomatology.
Under VA regulations, active service includes active duty,
active duty for training during which disability as a result
of disease or injury is incurred or aggravated in line of
duty or inactive duty training during which disability as a
result of injury is incurred or aggravated in line of duty.
A. Hypertension
The veteran contends that he was diagnosed with hypertension
during a routine physical examination in service in 1990.
Therefore, he argues that service connection is warranted for
hypertension.
Service medical records are negative for any findings of
complaints, treatment, or diagnosis of hypertension. When he
was examined in July 1988, February 1990, July 1992, April
1999, and February 2002 his blood pressure, respectively, was
128/84, 120/70, 128/88, 138/82, and 132/86, which is well
within the normal range. See 38 C.F.R. § 4.104, Diagnostic
Code 7101 (2007), Note (1) (hypertension means that diastolic
blood pressure is predominantly 90 mm. or greater, and /or
systolic blood pressure is predominantly 160 mm. or greater).
None of those reports made any reference to the veteran's
blood pressure, other than reporting the reading. Indeed,
the veteran specifically denied hypertension at the July
1992, April 1999, and February 2002 examinations.
The Board observes that post-service medical records reveal a
current diagnosis of hypertension. Specifically, an October
2004 private treatment record reports a diagnosis of
hypertension. Additionally, the December 2004 VA examiner
diagnosed hypertension, labile and borderline, and a November
2005 private and an August 2007 VA treatment record report a
diagnosis of hypertension. Thus, the Board concludes that
the veteran has a current diagnosis of hypertension.
The Board has considered all relevant evidence of record
regarding the veteran's claim for service connection for
hypertension. The Board first considered whether service
connection is warranted for hypertension on a presumptive
basis. However, the record fails to show that the veteran
manifested hypertension to a degree of 10 percent within one
year following his service discharge in July 1982. As such,
presumptive service connection is not warranted for
hypertension. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307,
3.309. A presumption of service connection does not exist
with respect to National Guard service.
The Board next considered whether service connection is
warranted for hypertension on a direct basis. However, while
the veteran has a current diagnosis of hypertension, the
record shows no complaint or diagnosis of the disability
during active service or for many years thereafter. Although
the veteran has contended that he was diagnosed in 1990
during a period of active duty for training, the first
diagnosis of hypertension of record is dated in October 2004,
more than 20 years since active service and after his
retirement from the National Guard.
The Board observes that the December 2004 VA examiner did not
provide an opinion with regard to the etiology of the
veteran's hypertension. However, as the only evidence of an
in-service incurrence of hypertension is the veteran's own
statements, a VA opinion is unnecessary as it would be based
only on the veteran's contentions and not supported by the
medical evidence of record.
Indeed, with respect to the veteran's contentions, a
layperson is generally not capable of opining on matters
requiring medical knowledge. Routen v. Brown, 10 Vet.
App. 183, 186 (1997). See also Bostain v. West, 11 Vet.
App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet.
App. 492 (1992) (a layperson without the appropriate medical
training and expertise is not competent to provide a
probative opinion on a medical matter, to include a diagnosis
of a specific disability and a determination of the origins
of a specific disorder). Lay testimony is competent,
however, to establish the presence of observable
symptomatology and "may provide sufficient support for a
claim of service connection." Layno v. Brown, 6 Vet. App.
465, 469 (1994).
When a condition may be diagnosed by its unique and readily
identifiable features, the presence of the disorder is not a
determination "medical in nature" and is capable of lay
observation. In such cases, the Board is within its province
to weigh that testimony and to make a credibility
determination as to whether that evidence supports a finding
of service incurrence and continuity of symptomatology
sufficient to establish service connection. See Barr v.
Nicholson, 21 Vet. App. 303 (2007).
Lay evidence can be competent and sufficient to establish a
diagnosis of a condition when (1) a layperson is competent to
identify the medical condition, (2) the layperson is
reporting a contemporaneous medical diagnosis, or (3) lay
testimony describing symptoms at the time supports a later
diagnosis by a medical professional. Jandreau v. Nicholson,
492 F.3d 1372 (Fed. Cir. 2007).
Unlike varicose veins under Barr, a dislocated shoulder under
Jandreau, a disorder that was indicated in the medical record
to exist years after service, or a finding that one disorder
is related to another disorder, is not a condition capable of
lay diagnosis. See Woehlaert v. Nicholson, 21 Vet. App. 456
(2007).
In any event, regarding the issue of service connection on
appeal, the Board finds that the veteran's lay statements our
outweighed by the service and post-service treatment records
(indicating that hypertension began years after service).
The Board finds it to be particularly significant the veteran
first filed a claim for service connection for hypertension
nearly two decades after leaving service. See Shaw v.
Principi, 3 Vet. App. 365 (1992) (a veteran's delay in
asserting a claim can constitute negative evidence that
weighs against the claim).
Absent competent evidence of a causal nexus between the
veteran's hypertension and service, he is not entitled to
service connection on a direct basis.
B. Sinusitis
Service medical records reveal that the veteran was diagnosed
with sinusitis in April 1986. However, at a July 1992
physical examination, the veteran denied a history of
sinusitis, and the examiner notes only hay fever by history.
In contrast, at April 1999 and February 2002 physical
examinations, the veteran reported a history of sinusitis and
hay fever. The Board notes the lay statement of R. G. that
states that sinusitis was a constant source of pain for the
veteran during his annual National Guard training; however,
except for the April 1986 record, there is no indication
within the veteran's service records that he suffered from
sinusitis in service.
Further, the Board finds no medical evidence showing that the
veteran has a current diagnosis of sinusitis. October 2003
and November 2004 private treatment records show a diagnosis
of allergic rhinitis. A January 2005 VA treatment record
reports allergic rhinitis and frequent sinusitis by history,
and a January 2005 X-ray report indicates mild leftward
deviation of the nasal septum, but are otherwise negative.
No other post-service medical records refer to sinusitis,
either as a current diagnosis or by history.
Thus, the only evidence of record that the veteran has
sinusitis as a result of his military service is his own
statements and the lay statement of R. G. As stated, only
those with specialized medical knowledge, training, or
experience are competent to provide evidence on questions of
diagnosis and causation. See Jones, supra; Espiritu, supra;
see also Layno, supra. Therefore, the Board concludes that
there is no current diagnosis of sinusitis. Without a
disability, there can be no entitlement to compensation. See
Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992).
III. Increased rating claims
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4 (2007). The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The
basis of disability evaluation is the ability of the body as
a whole, or of the psyche, or of a system or organ of the
body to function under the ordinary conditions of daily life
including employment. 38 C.F.R. § 4.10.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. Otherwise the lower rating will be
assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be
resolved in the veteran's favor. 38 C.F.R. § 4.3.
In general, all disabilities, including those arising from a
single disease entity, are rated separately, and all
disability ratings are then combined in accordance with
38 C.F.R. § 4.25. Pyramiding, the evaluation of the same
disability, or the same manifestation of a disability, under
different diagnostic codes, is to be avoided when rating a
veteran's service-connected disabilities. 38 C.F.R. § 4.14.
In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held
that evidence to be considered in the appeal of an initial
assignment of a disability rating was not limited to that
reflecting the then current severity of the disorder. As
such, the Board has considered all evidence of record in
evaluating the veteran's right and left knee disabilities.
Also, in Fenderson, the Court discussed the concept of the
"staging" of ratings, finding that in cases where an
initially assigned disability evaluation has been disagreed
with, it was possible for a veteran to be awarded separate
percentage evaluations for separate periods based on the
facts found during the appeal period. Fenderson at 126-28.
As such, in accordance with Fenderson, the Board has
considered the propriety of staged ratings in evaluating the
veteran's service-connected knee disabilities
In determining the degree of limitation of motion, the
provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for
consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995).
The basis of disability evaluation is the ability of the body
as a whole, or of the psyche, or of a system or organ of the
body to function under the ordinary conditions of daily life
including employment. 38 C.F.R. § 4.10.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination, and
endurance. Functional loss may be due to the absence or
deformity of structures or other pathology, or it may be due
to pain, supported by adequate pathology and evidenced by the
visible behavior in undertaking the motion. Weakness is as
important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled. 38
C.F.R. § 4.40.
With respect to joints, in particular, the factors of
disability reside in reductions of normal excursion of
movements in different planes. Inquiry will be directed to
more or less than normal movement, weakened movement, excess
fatigability, incoordination, pain on movement, swelling,
deformity or atrophy of disuse. 38 C.F.R. § 4.45.
The intent of the Rating Schedule is to recognize actually
painful, unstable or malaligned joints, due to healed injury,
as entitled to at least the minimum compensable rating for
the joint. 38 C.F.R. § 4.59.
The veteran's service-connected right knee disability and
left knee disability are each assigned a 10 percent rating
for limitation of flexion under 38 C.F.R. § 4.71a, Diagnostic
Code 5260 (2007). The veteran contends that his symptomology
is worse than is contemplated under these ratings, and that a
higher rating should, therefore, be assigned.
Under Diagnostic Code 5003, degenerative arthritis
established by X-ray findings will be rated on the basis of
limitation of motion under the appropriate diagnostic code(s)
for the specific joint(s) involved. When, however, the
limitation of motion of the specific joint(s) involved is
noncompensable under the appropriate diagnostic code(s), a 10
percent rating is for application for each such major joint
or group of minor joints affected by limitation of motion, to
be combined, not added under Diagnostic Code 5003.
Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion. With X-ray evidence of
involvement of 2 or more major joints, with occasional
incapacitating episodes, a 20 percent rating will be
assigned. With X-ray evidence of involvement of 2 or more
major joints, a 10 percent rating will be assigned. The 20
percent and 10 percent ratings based on X-ray findings will
not be combined with ratings based on limitation of motion.
Diagnostic Code 5003, Note (1).
Under Diagnostic Code 5258, dislocated semilunar cartilage
with frequent episodes of "locking," pain, and effusion
into the joint is assigned a 20 percent rating. Under
Diagnostic Code 5259, symptomatic removal of semilunar
cartilage warrants a 10 percent rating.
Under Diagnostic Code 5260, flexion of the leg limited to 30
degrees warrants a 20 percent rating. Flexion limited to 15
degrees warrants a 30 percent rating.
Under Diagnostic Code 5261, extension of the leg limited to
10 degrees warrants a 10 percent rating. Extension of the
leg limited to 15 degrees warrants a 20 percent rating.
Where extension is limited to 20 degrees, a 30 percent rating
is assigned. Where extension is limited to 30 degrees, a 40
percent rating is assigned. Where extension is limited to 45
degrees, a 50 percent rating is assigned.
Normal range of knee motion is 140 degrees of flexion and
zero degrees of extension. 38 C.F.R. § 4.71, Plate II.
Initially, the Board notes that, with regard to the left
knee, the veteran underwent arthroscopic excision of plica in
August 2006. He was in receipt of a 100 percent evaluation
for convalescence from August 8, 2006 to November 30, 2006
for the left knee only. A follow-up treatment record dated
in August 2006 states that the wound was healing well without
complication and the knee was cool with trace effusion. An
October 2006 follow-up shows use of a crutch, no effusion,
and trace crepitus. A November 2006 follow-up reports that
maximum benefit from physical therapy had been achieved and
range of motion was from 0 to 125 degrees. Dr. T.E.
indicates in a December 2006 treatment note that increased
pain with some crepitance is the result of the veteran
ceasing his anti-inflammatory medication against
instructions. The veteran's left knee disability was
reassigned a 10 percent rating, effective December 1, 2006.
At the October 2004 VA examination, the veteran had
subjective complaints of symptoms for five to six years, to
include pain in the knees with standing, running, and
walking, as well as stiffness in the morning. He further
indicated problems with squatting, climbing stairs, and
kneeling. He denied swelling, heat, redness, or instability.
Objectively, the examiner found range of motion of both knees
from 0 to 135 degrees with minimal patellar crepitus in both
knees. Patellofemoral apprehension was positive, and
Lachman's and McMurray's tests were negative. The examiner
found no additional functional limitation due to pain,
weakness, fatigability, or lack of endurance. He diagnosed
bilateral mild degenerative arthrosis of the patellofemoral
and medial joint compartments without antecedent history of
traumatic events.
At a November 2005 VA examination, the veteran complained of
stiffness with prolonged sitting, a burning sensation in both
knees, and aggravation of pain with standing and sitting. He
presented with knee braces on both knees. The examiner found
extension in both knees to 0 degrees, right knee flexion to
110 degrees without pain and to 120 with pain, and left knee
flexion to 75 degrees without pain and to 90 degrees with
pain. Crepitus was noted in both knees with flexion and
extension. Repeated valgus-varus and anterior and posterior
drawer tests revealed no instability. No additional
limitation was noted due to pain, weakness, fatigability, or
lack of endurance.
A July 2006 VA treatment record reveals that the veteran
reported pain worse on the left than right, and with
prolonged sitting, stair climbing, and walking. He also
indicated some popping and locking, and occasional giving way
when climbing stairs. Objective examination of both knees
revealed mild varus deformity that was correctable. Full
range of motion of the knees from full extension to 120
degrees flexion was observed. There was tenderness about the
patellas with normal tracking bilaterally. Valgus-varus
testing revealed no instability. Anterior and posterior
drawer tests were normal. A patellar grind test was positive
bilaterally. No effusion was present in either knee.
February 2007 VA treatment records show the veteran
complained of locking and popping. There was no crepitus or
joint instability. Early degenerative joint disease was
present in March 2007 X-rays, but no bony masses were found.
A March 2007 VA treatment record shows the veteran was using
a crutch to walk.
A March 2007 MRI of the left knee shows mild degenerative
joint disease with degenerative thinning of the hyaline
cartilage at the medial and lateral compartments of the
femorotibial joint.
With regard to the both knees, the Board finds that the
symptomology does not support a rating in excess of 10
percent for either knee. Specifically, a higher rating under
Diagnostic Code 5260 is not warranted without evidence of
flexion limited to 30 degrees or less. A separate rating for
limitation of extension is not warranted unless extension is
limited to 5 degrees or more. VAOPGCPREC 9-2004 (September
17, 2004). Even with consideration of greater limitations
due to pain, the Board finds that limitations of motion to
warrant a higher rating are not present in either knee at any
time during the rating period.
The Board observes that Diagnostic Code 5003, degenerative
arthritis established by X-ray findings, is also for
consideration as X-rays have shown early degenerative joint
disease. However, as discussed above, a separate rating for
degenerative arthritis is only for application when the
limitation of motion of the specific joint involved is
noncompensable under the appropriate diagnostic code. As the
veteran is in receipt of a 10 percent rating for limitation
of motion under Diagnostic Code 5260 for each knee, a
separate rating under Diagnostic Code 5003 is not warranted.
Consideration has also been given to the potential
application of the various provisions of 38 C.F.R. Parts 3
and 4 (2007), as required by Schafrath v. Derwinski, 1 Vet.
App. 589 (1991). However, Diagnostic Codes 5256, 5257, 5258,
5259, 5262, and 5263, pertaining to knee ankylosis, other
impairment of the knee due to subluxation or lateral
instability, dislocated semilunar cartilage, removal of
semilunar cartilage, impairment of the tibia and fibula, and
genu recurvatum, respectively, are not for consideration as
the evidence fails to demonstrate such symptomatology in
either the right knee or left knee. As such, a review of the
record fails to reveal any additional functional impairment
associated with the veteran's right or left knee disability
so as to warrant application of alternate rating codes.
IV. Other considerations
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, in
the present case, the preponderance of the evidence is
against the veteran's claims of entitlement to service
connection and increased ratings for his service-connected
knee disabilities. Therefore, his claims must be denied.
With regard to the veteran's increased rating claims,
referral for extra-schedular consideration has been
contemplated. An extra-schedular disability rating is
warranted if the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization that application of the regular schedular
standards would be impracticable. 38 C.F.R. § 3.321(b)(1)
(2007). The Board finds no evidence that the veteran's
service-connected knee disabilities present such an unusual
or exceptional disability picture at any time so as to
require consideration of an extra-schedular evaluation
pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The
objective medical evidence of record shows that
manifestations of the veteran's service-connected
disabilities do not result in a marked functional impairment
in a way or to a degree other than that addressed by VA's
Rating Schedule. The schedular rating criteria are designed
to compensate for average impairments in earning capacity
resulting from service-connected disability in civil
occupations. 38 U.S.C.A. § 1155 (West 2002). Generally, the
degrees of disability specified in the rating schedule are
considered adequate to compensate for considerable loss of
working time from exacerbations or illnesses proportionate to
the severity of the several grades of disability. 38 C.F.R.
§ 4.1. Consequently, the Board concludes that referral of
this case for consideration of an extra-schedular rating is
not warranted. Bagwell v. Brown, 9 Vet. App. 337, 338-39
(1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).
ORDER
Entitlement to service connection for hypertension is denied.
Entitlement to service connection for sinusitis is denied.
Entitlement to a rating in excess of 10 percent for left knee
chrondomalacia is denied.
Entitlement to a rating in excess of 10 percent for right
knee chrondomalacia is denied.
REMAND
The veteran contends that his bilateral plantar fasciitis,
right olecranon bursitis, and current back disorders are the
result of injuries in service, and that service connection is
warranted for these disabilities, as well as for, his in-
service inguinal hernia and related surgery. The Board
determines that a remand is necessary to afford the veteran
VA examinations to ascertain the nature and etiology of his
current bilateral foot disorder, right elbow disorder, back
disorder, and inguinal hernia.
In reference to the veteran's bilateral foot disorder,
service medical records reveal treatment for various foot
disorders. April 1982 service records indicate treatment for
sore feet and bruises due to running barefoot. The veteran
was treated for a plantar wart on the left foot in June 1988,
and a spur on the bottom of the right foot in March 2004
during active duty for training. Post-service records
indicate the existence of bilateral plantar fasciitis since
2003.
With regard to a nexus between the veteran's bilateral foot
disorder and his active duty and National Guard service, the
Board acknowledges the October 2006 opinion of Dr. B. L.,
which states that the veteran has obvious degenerative
changes with degenerative arthritis, spurring and mechanical
overuse, probably from his military career. However, the
Board notes that Dr. B. L.'s opinion does not relate the
veteran's current disorder to a specific injury or incident
during his military service. Further, the July 2004 VA
examiner did not provide an opinion with regard to the
etiology of the veteran's bilateral foot disorder.
Accordingly, another VA examination is necessary to ascertain
the nature and etiology of the veteran's current bilateral
foot disorder.
As for the inguinal hernia, service medical records note by
history an operation for bilateral inguinal hernias in
October 1983. However, except by reference to the operation
as part of the veteran's medical history, there is no mention
of further treatment or diagnosis related to a hernia during
service. With regard to post-service records, no medical
evidence indicates the veteran currently suffers an inguinal
hernia or residuals of his inguinal hernia or the October
1983 operation. Nevertheless, the Board observes that the
veteran could have residuals from his surgery, such as scars,
which have not been documented. Therefore, the Board finds
that a VA examination is necessary to determine the existence
of any residuals of the veteran's in-service inguinal hernias
or related surgery.
The Board observes that the veteran had a diagnosis of right
olecranon bursitis in March 1997 during a period of active
duty for training. Additionally, treatment for continued
swelling and pain was noted in May 1997 service records. A
September 1997 record reports pain in the upper right arm,
and an October 1997 record indicates treatment for right
elbow tendonitis.
The Board notes that post-service records report treatment
for right olecranon bursitis. Specifically, a January 2005
X-ray of the elbow indicates olecranon bursitis could be the
reason for the position of the ossicle, and a January 2005 VA
treatment record confirms the diagnosis. A February 2005 VA
treatment record notes that the veteran was still
experiencing pain. An August 2005 VA treatment record
reports bursitis of the elbows by history. Thus, although
the Board recognizes that several years have passed between
the veteran's in-service treatment for the disorder and his
current treatment, the Board finds that a VA examination is
necessary to determine whether the current disorder is
related to the initial injury that occurred in service.
With regard to the veteran's back disorder, the Board
observes that the veteran's service medical records contain
multiple mentions of back pain from different sources. A
physical examination dated in July 1988 reports lower back
pain since an auto accident in January 1988, but resolving.
The clinical evaluation at that time was normal. A July 1992
physical examination notes a lumbosacral strain in September
1991 with no sequelae. The clinical examination was again
normal. March 1996 records report that the veteran
complained of a left thigh and hip injury when lifting an
immersion heater, and April 1996 records report follow-up
treatment for that injury, including treatment for back pain.
The Board also notes that the veteran has been treated
regularly for back pain since filing his claim in May 2004.
Additionally, a January 2005 VA treatment report refers to
degenerative joint disease of the back, and a January 2006
letter from Dr. W. O. states that the veteran has
degenerative disc disease, supported by a December 2005 MRI
showing a small disc herniation at L4-L5 with a small focal
tear at L5-S1. Therefore, the Board concludes that the
veteran has a current diagnosis of a back disorder, to
include a diagnosis of lumbar radiculopathy.
However, the veteran has not been afforded a VA examination
to determine if there is a relationship between any of his
in-service injuries and his current back disorder. Further,
the Board notes that, in a November 2006 statement, Dr. T. E.
opined that the veteran's back pain is secondary to his
inability to flex his knees when bending over, thus raising
the possibility of secondary service connection.
Consequently, the Board determines that a remand is necessary
to schedule the veteran for a VA examination to determine the
nature and etiology of his current back disorder.
The Board observes that, while this appeal was pending, VA
amended 38 C.F.R.
§ 3.310, the regulation concerning secondary service
connection. The intent of the amendment is to conform the
regulation to Allen v. Brown, 7 Vet. App. 439 (1995), the
Court decision that clarified the circumstances under which a
veteran may be compensated for an increase in the severity of
an otherwise nonservice-connected condition caused by
aggravation from a service-connected condition. See 71 Fed.
Reg. 52,744 (September 7, 2006).
Effective October 10, 2006, the section heading of 38 C.F.R.
§ 3.310 was retitled "Disabilities that are proximately due
to, or aggravated by, service-connected disease or injury,"
and the text amended to include a new paragraph:
(b) Aggravation of nonservice-connected
disabilities. Any increase in severity of a
nonservice-connected disease or injury that is
proximately due to or the result of a service-
connected disease or injury, and not due to the
natural progress of the nonservice-connected
disease, will be service connected. However,
VA will not concede that a nonservice-connected
disease or injury was aggravated by a service-
connected disease or injury unless the baseline
level of severity of the nonservice-connected
disease or injury is established by medical
evidence created before the onset of
aggravation or by the earliest medical evidence
created at any time between the onset of
aggravation and the receipt of medical evidence
establishing the current level of severity of
the nonservice-connected disease or injury.
The rating activity will determine the baseline
and current levels of severity under the
Schedule for Rating Disabilities (38 CFR part
4) and determine the extent of aggravation by
deducting the baseline level of severity, as
well as any increase in severity due to the
natural progress of the disease, from the
current level.
Therefore, this remand for substantive development will allow
for notification of the evidentiary requirements of secondary
service connection claim, in accordance with Allen, supra.
With regard to the veteran's claim for a higher disability
evaluation for his degenerative joint disease, fifth finger
of the left hand, to include healed fracture of the left
wrist, the Board notes that in November 2004, the veteran
submitted a notice of disagreement with an RO decision
granting service connection and awarding an initial
noncompensable rating for this disability. However, a
statement of the case has not been issued. Thus, a remand is
required for issuance of a statement of the case. Manlincon
v. West, 12 Vet. App. 238 (1999).
Accordingly, the case is REMANDED for the following action:
1. The veteran should be sent a notice of
the evidence required to substantiate a
claim for secondary service connection,
i.e., that the veteran's back disorder
was incurred or aggravated beyond its
normal progression as a result of his
service-connected disabilities, in
accordance with Allen.
2. A statement of the case should be
issued in response to the November 2004
notice of disagreement submitted by the
veteran on the issue of degenerative
joint disease, fifth finger of the left
hand, to include healed fracture of the
left wrist, in accordance with
Manlincon.
3. The veteran should be scheduled for VA
examinations to assess the current
nature and etiology of the veteran's
bilateral foot disorder. The claims
file and a copy of this remand must be
made available to and reviewed by the
examiner prior to the requested
examination. The examiner should
indicate in the report that the claims
file was reviewed. All necessary tests
should be conducted and the examiner
should review the results of any
testing prior to completion of the
report. After reviewing the claims
file and examining the veteran, the
examiner should respond to the
following:
Is it at least as likely as not (a 50%
or higher degree of probability) that
any current bilateral foot disorder is
etiologically related to the veteran's
active service?
The examiner must provide a
comprehensive report including complete
rationales for all conclusions reached.
4. The veteran should be scheduled for a
VA examination to determine the nature
of any residuals from the veteran's in-
service hernia and surgery and their
etiology. The claims file and a copy
of this remand must be made available
to and reviewed by the examiner prior
to the requested examination. The
examiner should indicate in the report
that the claims file was reviewed. All
necessary tests should be conducted and
the examiner should review the results
of any testing prior to completion of
the report. After reviewing the claims
file and examining the veteran, the
examiner should respond to the
following:
What if any residuals of the veteran's
in-service inguinal hernia and surgery
are present, and is it at least as
likely as not (a 50% or higher degree
of probability) that such residuals are
etiologically related to the veteran's
active service?
The examiner must provide a
comprehensive report including complete
rationales for all conclusions reached.
5. The veteran should be scheduled for a
VA examination to assess the current
nature and etiology of any current
right elbow disorder. The claims file
and a copy of this remand must be made
available to and reviewed by the
examiner prior to the requested
examination. The examiner should
indicate in the report that the claims
file was reviewed. All necessary tests
should be conducted and the examiner
should review the results of any
testing prior to completion of the
report. After reviewing the claims
file and examining the veteran, the
examiner should respond to the
following:
Is it at least as likely as not (a 50%
or higher degree of probability) that
any current elbow disability is
etiologically related to the veteran's
active service?
The examiner must provide a
comprehensive report including complete
rationales for all conclusions reached.
6. The veteran should be scheduled for VA
examination to assess the current
nature and etiology of any current back
disorder. The claims file and a copy
of this remand must be made available
to and reviewed by the examiner prior
to the requested examination. The
examiner should indicate in the report
that the claims file was reviewed. All
necessary tests should be conducted and
the examiner should review the results
of any testing prior to completion of
the report. After reviewing the claims
file and examining the veteran, the
examiner should respond to the
following:
a) Is it at least as likely as not (a
50% or higher degree of probability)
that any current back disability is
etiologically related to the veteran's
active service?
b) If the response to the first
question is negative, is it at least as
likely as not (a 50% or higher degree
of probability) that any current back
disability is proximately due to, or
caused by, the veteran's service-
connected right and left knee
disabilities?
c) Is it at least as likely as not (a
50% or higher degree of probability)
that any current back disability has
been aggravated by the veteran's
service-connected right and left knee
disabilities? If so, the examiner
should report the baseline level of
severity of the back disability prior
to the onset of aggravation, or by the
earliest medical evidence created at
any time between the onset of
aggravation and the receipt of medical
evidence establishing the current level
of severity. If some of the increase
in severity of the back disability is
due to the natural progress of the
disease, the examiner should indicate
the degree of such increase in severity
due to the natural progression of the
disease. See generally 38 C.F.R. §
3.310(b) (effective October 10, 2006).
d) Is it at least as likely as not (a
50% or higher degree of probability)
that any current lumbar radiculopathy
is etiologically related to the
veteran's active service or caused by
the veteran's back disability?
The examiner must provide a
comprehensive report including complete
rationales for all conclusions reached.
7. The veteran must be given adequate
notice of the date and place of any
requested examination. A copy of all
notifications must be associated with
the claims file. The veteran is to be
advised that failure to report for a
scheduled VA examination without good
cause may have adverse effects on his
claims. 38 C.F.R. § 3.655 (2007).
8. After completing the above actions and
any other development as may be
indicated by any response received as a
consequence of the actions taken in the
preceding paragraphs, the veteran's
service connection claims should be
readjudicated, to include all evidence
received since the June 2007 SSOC. The
veteran and his representative should
then be issued another supplemental
statement of the case. An appropriate
period of time should be allowed for
response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
(CONTINUED ON NEXT PAGE)
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs